JUDGMENT : A.J.DESAI, J. 1. By way of present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”), the appellant herein – original accused No.2 has challenged the judgment and order of conviction and sentence dated 22.03.2013 rendered by the learned 3rd Additional Sessions Judge, Dahod in Sessions Case No.57 of 2012, whereby the appellant herein has been convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentenced to undergo life imprisonment with fine of Rs.1000/- and in default of payment of fine, further rigorous imprisonment of 3 months has been imposed. 2. Present Criminal Appeal came to be admitted by an order dated 03.05.2013 passed by the coordinate Bench. Record & Proceeding of the Sessions Case No.57 of 2012 alongwith paper-book was received by the Registry. 3. Considering the fact that the appellant herein is in jail since 09.03.2012 i.e. for more than 9 years, with the consent of learned advocates appearing for respective parties, present criminal appeal is taken up for hearing. 4. The short facts emerging from the record of the case are as under: 4.1 The complainant – Vineshbhai Sheniyabhai Bhuriya, resident of Patiya, Gala Faliyu, Taluka Garbada, District Dahod lodged an FIR being I-CR No.27/2012 with Garbada Police Station, Dahod on 08.03.2012 for the offences punishable under Sections 302, 504 and 114 of the IPC and Section 135 of the Bombay Police Act alleging that on the date of Holi i.e. on 07.03.2012, when he alongwith other persons including the deceased Mukeshbhai Puna (hereinafter referred to as “deceased”) were returning to their home, near the resident of Meda family, present appellant alongwith another accused vis. Bhanabhai Lallubhai Meda came with arrow and bows and started abusing with regard to one girl who happens to be the daughter of Ramesh Jota Parmar. The present appellant took out the arrow and bow and challenged all the persons and thereafter used the said weapon pursuant to which the deceased sustained injury on left side of his private part. The arrow was removed from the private part of the deceased and deceased was shifted to hospital where he was declared dead by the Doctor. Both the accused were arrested. The arrow was removed from the private part of the deceased and deceased was shifted to hospital where he was declared dead by the Doctor. Both the accused were arrested. 4.2 Accordingly, the FIR being I-CR No.27 of 2012 was registered with Garbada Police Station, Dahod for the offences punishable under Sections 302, 504 and 114 of the IPC and under Section 135 of the Bombay Police Act. Upon completion of investigation, on the basis of the material collected against the accused persons, the Investigating Officer filed the charge-sheet before the Court of learned Judicial Magistrate First Class, Garbada for the alleged offences, which came to be registered as Criminal Case No.177/2012. Since the offences alleged against the accused persons were triable by the Court of Sessions, the case was committed to the Court of Sessions under Section 209 of the CrPC, which came to be registered as Sessions Case No.57 of 2012. 4.3 On committal, the case was placed for trial before the learned 3rd Additional Sessions Judge, Dahod, who had framed charge vide Exh.6 for the alleged offences. The charge was read over and explained to the accused, wherein the accused pleaded not guilty and claimed to be tried. 4.4 In order to bring home the charge leveled against the accused, the prosecution has examined as many as 15 witnesses and produced several documentary evidences like panchnama of scene of offence, arrest panchnama, post-mortem note etc. After recording the evidence of the prosecution witnesses, the learned Additional Public Prosecutor submitted closing purshis. Thereafter, the learned Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements under Section 313 of the CrPC. In their further statements, accused denied the case of prosecution in entirety. However, the accused have neither led any evidence nor did they examine any witnesses in support of their defence. 4.5 At the end of trial, on appreciation, evaluation, analysis and scrutiny of the evidence on record, the learned 3rd Additional Sessions Judge, Dahod vide judgment and order dated 22.03.2013 passed in Sessions Case No.57 of 2012, convicted and sentenced accused No.2 i.e. the appellant herein as stated above and acquitted accused No.1. 5. Heard learned advocate Mr. Yatin Soni appaering for the appellant and learned APP Mr. J.K. Shah appearing for the respondent – State. 6. Learned advocate Mr. 5. Heard learned advocate Mr. Yatin Soni appaering for the appellant and learned APP Mr. J.K. Shah appearing for the respondent – State. 6. Learned advocate Mr. Yatin Soni appearing for the appellant at the outset would submit that it is not in dispute that deceased Mukeshbhai died of the incident in question and due to injury caused by bow. He would submit that in view of occurrence of incident is not disputed, he restricts his challenge to the conviction of the appellant under Section 302 of the IPC and that considering the facts and circumstances of the case, the appellant ought to have been convicted under Section 304 Part-II of the IPC and hence, by way of this appeal he has emphasized to convert the aforesaid sentence under Section 302 of the IPC into Section 304 Part-II of the IPC. In support of his submission, he has taken us through the FIR, depositions of complainant and other eye-witnesses. He would submit that the incident has taken place subsequent to Holi Darshan i.e. late in the evening. He would submit that the complainant has admitted in his cross-examination so stated in the FIR about some dispute with regard to daughter of one Ramesh Jota Parmar but said person has no daughter, however has also admitted that brother in law of applicant No.1 viz. Gumji Savsingh had sustained stone injury on his head and had reached at the place where entire Meda family (to whom the appellant also belong) are residing and at that time at around 11.30 p.m., said Gumji Savsingh was running and number of persons from the complainant’s side were following him and therefore, the appellant took out arrow and bow which is usually kept by Adivasi persons and without any intention used it which landed on the private part of the deceased which resulted into death of the deceased. In support of his said submission, learned advocate Mr. Soni has taken us through deposition of the complainant viz. Vineshbhai Sheniyabhai Bhuriya (PW-2, Exh.12). 6.1 With regard to the injury sustained by the deceased, he has taken us through the evidence of Dr. Pritiben Mukeshbhai Somabhai (PW-1, Exh.9) and would submit that the deceased had sustained only single contused wound on his private part and therefore, in such circumstances, the case can be considered under the provision of Section 304 of the IPC. 6.1 With regard to the injury sustained by the deceased, he has taken us through the evidence of Dr. Pritiben Mukeshbhai Somabhai (PW-1, Exh.9) and would submit that the deceased had sustained only single contused wound on his private part and therefore, in such circumstances, the case can be considered under the provision of Section 304 of the IPC. He has also taken us through the deposition of other eye-witness viz. Dalsingh Samsubhai Bhuriya (PW-3, Exh.14), who has also deposed on the same line like the original complainant. Similar is the say of another witness viz. Prakashbhai Nagrabhai Bhabhor (PW-4, Exh.15). 6.2 He would further submit that it is not in dispute that the incident has taken place near the house of the appellant as well as the fact that the house of the complainant’s side are in totally different direction from the place where the Holi festival was celebrated and therefore, it is established that deceased alongwith number of persons, whose names have been referred in the FIR as well as depositions, had followed relative of one of the accused and having seen number of persons, the weapon which is being always carried by Adivasi people, is used in the crime without any pre-meditation and without any intention and therefore, the case may be considered for the offence punishable under Section 304 of the IPC. In support of his above submissions, he has relied upon the following decisions. 6.3 He would further submit that it is an undisputed fact that the deceased though might have sustained a single injury on private part and therefore, it cannot be said that the case would not automatically fall under Section 302 of the IPC. In support of the said submission, learned advocate Mr. Soni has relied on the decision of the Hon’ble Supreme Court in the case of Stalin vs. State represented by the Inspector of Police reported in (2020)9 SCC 524 and would submit that the appeal be accordingly considered. 6.4 Since the learned advocate Mr. In support of the said submission, learned advocate Mr. Soni has relied on the decision of the Hon’ble Supreme Court in the case of Stalin vs. State represented by the Inspector of Police reported in (2020)9 SCC 524 and would submit that the appeal be accordingly considered. 6.4 Since the learned advocate Mr. Soni has restricted his challenge to the judgment impugned to the extent of conviction of the appellant under Section 302 of the IPC and he has not challenged the aspect of holding the present appellant guilty as if he has not committed any office, but has argued the appeal only for the purpose of converting the conviction of the appellant from Section 302 to Section 304 of the IPC and to reduce the sentence accordingly, learned advocate Mr. Soni did not discuss the other evidence at length and made submission on any other aspects than challenging the conviction of the appellant under Section 304 and to reduce the sentence imposed upon the appellant accordingly. 6.5 Mr. Yatin Soni, learned advocate for the appellant by relying upon judgments of the Apex Court in the case of [1] Hariram vs. State of Haryana reported in 1983(1) SCC 193 [2] Jagtar Singh vs. State of Punjab reported in 1983(2) SCC 342 and (3) Stalin vs. State represented by the Inspector of Police reported in (2020)9 SCC 524 , submitted that when there is death due to single blow caused to the deceased unless is proved and when it is without any knowledge or intention, the conviction would be under Section 304 Part-I or under Section 304 Part-II, but not under Section 302 of the IPC and urged that in the instant case also the conviction of the appellant be converted into Section 304 Part-II from Section 302 of the IPC and reduce the punishment accordingly. 7. On the contrary, learned APP Mr. J.K.Shah appearing for the respondent State submitted that it is true that there is only one blow given on the private part of the deceased, however whether the conviction of the appellant can be converted into Section 304 of the IPC or not can be examined only by the circumstances, which led to occurrence of the offence. On the basis of the aforesaid submissions, learned APP Mr. On the basis of the aforesaid submissions, learned APP Mr. Shah prayed for dismissal of Criminal Appeal and to confirm the conviction rendered by the learned Judge under Section 302 of the IPC. 8. We have heard learned Counsel appearing for the respective parties, perused the Record & Proceedings of the Sessions Case No.57/2012 as also the depositions of the witnesses. 8.1 It is an undisputed fact that the incident has taken place at around 11.30 p.m. near the house of the appellant. It has also come on record that one of the relative of the original accused had sustained head injury in connection with some scuffle pursuant to which deceased alongwith complainant and other persons were following him and in such circumstances, the appellant alongwith another accused, who has been acquitted, were present near the house and having fear of attack, have used the arrow and bow which unfortunately landed on the private part of the deceased which resulted into death. 8.2 It is undoubted that arrow is a dangerous weapon and if lands on vital part of the body would result into death of a person. In this case, as per the post-mortem note (Exh.11), the deceased had sustained an injury in the nature of punctured wound over left inguinal region (grain) in the middle 1/3rd 1”x 1/2” oval & 21/2” deep and femoral vessel teared and the cause of death as per the post-mortem report is haemorragic shock due to tear of major vessels i.e. femoral vessels due to sharp pointed object’s injury. Hence, we are of the opinion that the case would fall under Section 304 (Part-I) and not under Section 304 (Part-II) of the IPC as submitted by learned advocate appearing for the appellant. However, considering the fact that the applicant has undergone sentence of more than 9 years as also considering the overall jail conduct of the appellant, we are of the opinion that sentence can be accordingly converted from one under Section 302 of the IPC to section Section 304 (Part-I). 8.3 All the aforesaid facts would go to show that in fact there was no motive on the part of the appellant to kill the deceased. 8.3 All the aforesaid facts would go to show that in fact there was no motive on the part of the appellant to kill the deceased. It is true that some incident took place and in heat of moment, the appellant shot the arrow without any intention to kill the deceased, which unfortunately landed on private part of the deceased and resulted into his death. In this context, the Hon’ble Apex Court the case of Stalin (supra), in paragraphs 7.2 to 12, observed as under: “7.2 From the above stated decisions, it emerges that there is no hard and fast rule that in a case of single injury Section 302 IPC would not be attracted. It depends upon the facts and circumstances of each case. The nature of injury, the part of the body where it is caused, the weapon used in causing such injury are the indicators of the fact whether the accused caused the death of the deceased with an intention of causing death or not. It cannot be laid down as a rule of universal application that whenever the death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case, more particularly, under the circumstances narrated hereinabove, the events which precede will also have a bearing on the issue whether the act by which the death was caused was done with an intention of causing death or knowledge that it is likely to cause death, but without intention to cause death. It is the totality of the circumstances which will decide the nature of offence. 8. Now, so far as the submission on behalf of the accused that the motive alleged is of the incident prior to four months of the present incident and that the prosecution has failed to establish and prove is concerned, it is required to be noted that in the present case there are three eye-witnesses believed by both the Courts below and we also do not doubt the credibility of PWs 1, 2 and 3. As held by this Court in catena of decisions, motive is not an explicit requirement under the Penal Code, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence. As held by this Court in catena of decisions, motive is not an explicit requirement under the Penal Code, though “motive” may be helpful in proving the case of the prosecution in a case of circumstantial evidence. As observed hereinabove, there are three eye-witnesses to the incident and the prosecution has been successful in proving the case against the accused by examining those three eye-witnesses and therefore, as rightly observed by the High Court, assuming that the alleged motive is the incident which had taken place prior to four months or the prosecution has failed to prove the motive beyond doubt, the same shall not be fatal to the case of prosecution. 9. As observed and held by this Court in the case of Jafel Biswas v. State of West Bengal (2019) 12 SCC 560 , the absence of motive does not disperse a prosecution case if the prosecution succeed in proving the same. The motive is always in the mind of person authoring the incident. Motive not being apparent or not being proved only requires deeper scrutiny of the evidence by the courts while coming to a conclusion. When there are definite evidence proving an incident and eye-witness account prove the role of accused, absence in proving of the motive by prosecution does not affect the prosecution case. 10. Applying the law laid down by this Court in the aforesaid decisions, more particularly the decisions on the single injury and the facts on hand, it is required to be considered whether the case would fall under Section 302 IPC or any other lesser offence. PW3 – Nelson, who is an eye-witness to the incident right from the beginning, deposed that when the deceased – Kalidas served extra beer to two persons who came from outside, the accused became angry and told the deceased why he is giving more beer to out-town people and not giving to local people and thereafter the problem started and in that scuffle the accused took out the knife and stabbed from behind. From the medical evidence, the deceased sustained the following injuries: “External Injuries: A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood.” 11. From the medical evidence, the deceased sustained the following injuries: “External Injuries: A stab wound about 3 x 1.5 cm and 8 cm deep with clean edges present over the back on the right side corresponding to D11 vertebera present. Wound edges swollen, read with adherent blood.” 11. As per Exception IV to Section 300 IPC, culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage and not having acted in a cruel or unusual manner. In the present case, at the place of incident the beer was being served; all of them who participated in the beer party were friends; the starting of the incident is narrated by P.W.3, as stated hereinabove. Therefore, in the facts and circumstances, culpable homicide cannot be said to be a murder within the definition of Section 300 IPC and, therefore, in the facts and circumstances of the case narrated hereinabove and the manner in which the incident started in a beer party, we are of the opinion that Section 302 IPC shall not be attracted. 12. Now, the next question which is posed for consideration of this Court is whether the case would fall under Section 302 IPC Part II IPC? Considering the totality of the facts and circumstances of the case and more particularly that the accused inflicted the blow with a weapon like knife and he inflicted the injury on the deceased on the vital part of the body, it is to be presumed that causing such bodily injury was likely to cause the death. Therefore, the case would fall under Section 304 I of the IPC and not under Section 304 Part II of the IPC.” 9. In view of the above discussion, present Criminal Appeal is partly allowed. The judgment and order of conviction and sentence dated 22.03.2013 rendered by the learned 3rd Additional Sessions Judge, Dahod in Sessions Case No.57 of 2012 for the offences punishable under Section 302 of the Indian Penal Code, 1860 is hereby altered to one under Section 304 (Part I) of the Indian Penal Code, 1860 and accordingly, sentence of life imprisonment is reduced to sentence undergone of 9 years. The appellant – PIDIYABHAI NABLABHAI MEDA, having undergone sentence of more than 9 years and his overall jail conduct being good, the appellant shall be immediately released from the prison, if not required in any other case. Record and Proceeding be sent back to the learned trial Court forthwith.